Bariadie Investments (Private) Limited V (1) Puwayi Chiutsi (2) Tendai Mashamanda (3) THE Registrar OF Deeds (4) THE Sheriff OF THE HIGH Court (5) Eliot Rogers

### Preamble
Judgment No. SC 24 /22
1
Civil Appeal No. SC 09/20
REPORTABLE
(20)
---------


REPORTABLE 	(20)

BARIADIE     INVESTMENTS     (PRIVATE)     LIMITED

v

(1)     PUWAYI     CHIUTSI     (2)     TENDAI     MASHAMANDA (3)     THE     REGISTRAR     OF     DEEDS     (4)     THE SHERIFF     OF     THE     HIGH     COURT     (5)     ELIOT ROGERS

SUPREME COURT OF ZIMBABWE

GWAUNZA DCJ, GUVAVA JA, BHUNU JA

HARARE, 16 & 17 SEPTEMBER 2021 & 15 FEBRUARY 2022

Adv T Mpofu (with Adv T. O. Mapuranga), for the appellant

E. Mubaiwa, for the first respondent

Adv T. Magwaliba, for the second respondent

C. Damiso, for the fifth respondent

GWAUNZA DCJ

[1]	This is an appeal against the entire judgment of the 	High Court sitting at Harare, 	handed down on 24 December 2019. The appeal was heard together with the 	appeal in SC140/19 but separate judgments have been issued.

BACKGROUND FACTS

[2]	Sometime in 2012, the fifth respondent obtained judgment 	under HC 3331/14 against 	the first respondent. This was a result of the latter’s failure to pay the balance of 	USD$116 000 after he sold, on instruction, the fifth 	respondent’s piece of land in 	Mount Pleasant. The court ordered the sale in execution of the first respondent’s 	property known as the remainder of Subdivision C of Lot 6 	of Lots 190,191,192,193,194 and 195, Highlands Estate of 	Welmoed (hereinafter 	referred to as “the property”). On 18 September 2017, the appellant participated in 	the Sheriff’s sale by public auction, of the first respondent’s property, and was 	declared the highest bidder after offering to pay USD$270 000.

[3]	Thereafter, the first respondent lodged an objection to the confirmation of the sale by the fourth respondent in terms of rule 359 (1) of the High Court Rules 1971 (hereinafter referred to as “rules”) and the objection was dismissed. Subsequently, the first respondent filed a court application under case number HC 11349/17 in which he 	sought the setting aside of the confirmation by the Sheriff of the sale of the disputed 	property, to the appellant. MATHONSI J (as he then was) dismissed the application on the basis that the first respondent conducted himself in a dishonourable and unworthy 	manner by misappropriating trust funds and that, “he had employed every trick in the 	book to avoid paying his debt” to the fifth respondent. In addition to an order of costs 	against the second respondent on a punitive scale, the judge ordered that an 	appeal against his judgment would not suspend the decision appealed against. Undaunted, the first respondent appealed against that judgment.

[4]	The first respondent then proceeded unsuccessfully, to file an urgent chamber 	application for an interdict against the transfer of the property pending the outcome 	of the appeal 	that he had filed. In dismissing the application, this Court through 	BERE JA opined that the first respondent should allow execution to proceed rather 	than seek relief that would result in a miscarriage of justice vis a vis the appellant and 	the fifth respondent. On 21 January 2019, the first respondent filed yet another urgent 	chamber application under SC 15/19 where 	he sought the same relief, that is, an 	interdict against transfer of the property. The application was struck off the roll on the 	basis that the first respondent could not seek the same relief he had earlier 	unsuccessfully sought before the same court.

[5]	Notwithstanding the fact that the first respondent had failed to secure an interdict against transfer of the property in question to the appellant, the latter submitted it became aware that the first respondent had not only sold the property in question, but had had it transferred into the second respondent’s name on 8 February 2019. This led to the Deed of Transfer No.708/19 being issued in favour of the latter. The first respondent in this respect deposed to an affidavit dated 8 February 2019 in which he asserted, quite untruthfully, that there were no caveats or any other disputes standing in the way of such transfer.

[6]	The fifth respondent then filed an urgent chamber application under HC 1444/19 in which he sought the cancellation of Deed of Transfer No.708/19. This was on the basis that the first respondent’s conduct was fraudulent since he had sold property which was under judicial attachment without the knowledge of the fourth and fifth respondents. As a result, the fifth respondent argued, the sale in question was null and void. The court a quo dismissed the application, not on the merits, but on the main basis that it could not grant a final order in an urgent chamber application, where such order was disguised as a provisional order. The fifth respondent went on to appeal to this Court against that decision and the appeal was heard jointly with this appeal.

[7]	Thereafter, the appellant filed an application for the cancellation of Deed of Transfer No.708/19 under HC 2620/19. The court a quo dismissed the application reasoning that the matter was res judicata because it had already been decided by MANZUNZU J in HC 1444/19, a circumstance that rendered the court functus officio. The court also held that a pignus judiciale could not conclusively be considered to have been created over the property in question since the appellant had not proved the existence of a caveat registered against the title deed in the first respondent’s name.

[8]	Aggrieved by the court a quo’s judgment, the appellant noted the present appeal on the following grounds: -

1.	The court a quo erred in coming to the conclusion that the material and live 		issue of first respondent’s fraud and forgery in the disposal of the property, the 		subject matter of this lis, was not relevant to the just determination of the 			matter which was before it;

2.	In view of the extant judgment of MATHONSI J (as he then was) on the effect 		of any appeal that the first respondent could lodge and the judgments of 			GWAUNZA DCJ and BERE JA allowing for the completion of the process of 		execution, the court erred in treating those judgments as though they had no 		effect on the dispute before it;

3.	The court a quo erred in coming to the conclusion that the judgment of the 		High Court per MANZUNZU J concerned the same subject matter as the 			application before it and erred in failing to appreciate the material differences 		between the two matters.

4.	A fortiori, the court a quo erred in concluding that the defence of res judicata 		was sustainable and erred at any rate in concluding that res judicata could 			validly operate side by side with the technical defence of lis pendens.

5.	The court a quo erred in deciding the matter on the basis of issues not put to 		the parties and on its own unaided understanding of the other court records. It 		thus erred in hearing itself and not the parties.

6.	The court a quo erred in not coming to the conclusion that the question of 			equities was not live before it but that it had to determine instead the question 		of the validity of the sale and transfer to the second respondent in view of the 		pignus judiciale brought about by the attachment in execution.

7.	In view of the admitted fact of attachment and the fact that the effecting of an 		attachment is constituted by the placing of a caveat, the court a quo erred in 		coming to the conclusion that second respondent was an innocent purchaser 		and had no knowledge of any irregularities.

[9]	The appellant accordingly seeks;

i)   the success of the appeal, and

ii)  the setting aside of the judgment of the court a quo and its substitution with an    order;

-   cancelling Deed of Transfer No.708/19 issued in the name of the second respondent;

-  		for the revival of the deeds under which the land or any real right in the land was held immediately prior to the registration of the said Deed of Transfer

- 	for the transfer into the appellant’s name of the property in question and

-	that the first respondent and ‘any other

concerned respondent’ pay the costs of the appeal on the higher scale.

ISSUE FOR DETERMINATION

[10]	Although seven grounds of appeal were raised, the sole issue for determination is whether or not the court a quo erred in dismissing the appellant’s application for the cancellation of the deed of transfer issued in the name of the second respondent. This issue is, on the evidence before the court, determinable on the basis of the appellant’s grounds of appeal 1, 2, 6 and 7. A determination in favour of the appellant in this respect will render it unnecessary for the court to consider the rest of the appellant’s grounds of appeal.

[11]	Grounds of appeal 1 and 2 essentially address the same issue, that the court a quo erred in treating previous judgments, in particular, that of MATHONSI J (as he then was) in HH 604/18, as though they were irrelevant to the just determination of the dispute before it.  There is merit in this submission. MATHONSI J’s judgment was clear on the point that the first respondent could not dispose of the property whose sale the court had confirmed. As already indicated, MATHONSI J issued an order to the effect that the noting of an appeal against the judgment confirming the sale of the property by the Sheriff would not suspend that judgment. In other words, the sale would remain confirmed and transfer could properly be effected into the appellant’s name despite the appeal filed by the first respondent with this Court.

[12]	MATHONSI J’s order was extant at the time that the first respondent, in blatant violation thereof, sold the property to the second respondent. As a senior legal practitioner, he could not have failed to appreciate the fact that anything done in violation of an extant order of the court is, by that token, invalid at law. In the case of Artkinson v Artkinson (1952) 2 All ER 567 (CA) the following was aptly stated: -

“It is a plain and unqualified obligation of every person against, or in respect of, whom an order is made by the court of competent jurisdiction to obey it, unless and until that order is discharged; and those two (2) consequences flow from that obligation. The first is that anyone who disobeys a court order is in contempt and may be punished by committal or attachment or otherwise. The second is that no application to court by such a person will be entertained unless he has purged himself of his contempt…”

[13]	The order by MATHONSI J was competently made and, in its effect, was an order against the first respondent. Specifically, it was an order against the sale and transfer of the property in question otherwise than through the process ordinarily followed after a sale in execution is duly confirmed. By selling the property whose sale in execution to the appellant stood confirmed, the first respondent acted fraudulently and in blatant violation of the order by MATHONSI J.

[14]	That the first respondent fully appreciated the fact that he could not validly sell the property in the face of MATHONSI J’s order is demonstrated by his spirited efforts through the two applications filed with this court, to secure an interdict against transfer of the property to the appellant. With one High Court and two Supreme Court orders endorsing the injunction against him to dispose of the property in question, it is mind boggling that the first respondent, a lawyer of many years’ standing, proceeded to act in such open defiance of the law and judicial process. The appellant and the fifth respondents cannot be faulted for describing such conduct as being fraudulent and contemptuous.

[15]	The court a quo accordingly erred in treating the previous judgments of the High Court and this Court, whose effect was to bar the first respondent from selling the property to the second respondent, as having no effect on the case that was before it. The contrary was clearly the case.

Accordingly, grounds of appeal number (1) and (2) are determined in favour of the appellant.

[16]	The sale of the property in question by the first respondent to the second respondent is impugnable on other grounds. In its sixth ground of appeal the appellant argues, correctly in the court’s view, that once the property was placed under judicial attachment, it ceased to be in the control of the first respondent. Control thereof shifted to the fourth respondent, whose sale of the property to the appellant had been duly confirmed by the High Court. The appellant further argues that the judicial attachment of the property by the fourth respondent created a pignus judiciale over such property. Further, that the effect after such attachment was that the first respondent lost the right to deal with the property as he deemed fit.

In Liquidators Union & Rhodesia Wholesalers Ltd v Brown & Co 1922 AD 549 at 558-9, the following was appositely stated: -

“It will be desirable, before referring to s 201 of the Companies Act, to consider the law on the subject of the right possessed by a judgment creditor who has arrested the goods of his debtor under writ of execution. While an ordinary arrest of property under the Roman-Dutch law gives no preference, an arrest effected on property in execution of a judgment creates a pignus praetorium or to speak more correctly, a pignus judiciale, over such property. The effect of such a judicial arrest is that goods attached are thereby placed in the hands or custody of the officer of the Court. They pass out of the estate of the judgment debtor, so that in the event of the debtor’s insolvency the curator of the latter’s estate cannot claim to have the property attached delivered up to him to be dealt with in the distribution of the insolvent’s estate … (my emphasis)”

[17]	Applying the above dictum to the circumstances of this case, it is evident that the first respondent did not have the competency to dispose of the property after it was attached and further, had been sold in execution to raise the judgment debt owed by him to the appellant. Accordingly, and on this basis too, the sale was an act of fraud and cannot legally be sustained.

[18]	Further to the above, the first respondent should not be allowed to benefit from his fraudulent conduct. This principle was aptly articulated in TBIC Investments (Pvt) Ltd and Anor v Kennedy Mangenje and Ors SC 13/18, at p.9 wherein it was stated that: -

“To make matters worse, as correctly found by the learned Judge in the court a quo, the appellant obtained dubious title in circumstances where the original title deeds with the endorsement of State title had been fraudulently removed from the Deeds Registry. It is trite that one cannot transfer ownership of rights that he does not have nor can rights be lawfully transferred through fraudulent means. This is because the law prohibits anyone from deriving benefit from criminality regardless of the origin of the criminal conduct. (my emphasis)”

[19]	The property in question, albeit still registered in the first respondent’s name, ceased to be his to deal with as he wished, from the moment that it was attached in execution and thereafter sold to the appellant. He could not validly sell it to the second respondent. The court a quo therefore misdirected itself by effectively reading into the essential elements of a pignus judiciale, the requirement that a caveat against the transfer of judicially attached property by the judgment debtor must be proved to have been registered against the relevant Title Deed.

[20]	The first respondent fully appreciated that the attachment and sale of the property in execution that he so relentlessly sought to frustrate, would have resulted in him losing the property for good. He therefore stopped at nothing, including resorting to illegal conduct, in order to avert that misconceived catastrophe. Among other things, the first respondent perjured himself by deposing to an affidavit falsely disclaiming the existence of a caveat or any barrier to the transfer of the attached property to the second respondent. In the old case of Holman v Johnson (1775) 98 ALL ER 1121, it was properly held that: -

“No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.”

Echoing the same sentiment is the principle cited in Standard Chartered Bank Zimbabwe Ltd v Matsika 1997 (2) ZLR 389 (S) 389G-H, which is apposite in casu, to the following effect: -

“…Nemo ex suo delicto meliorem suam conditionem facere potest’, which means: no one can make his condition better by his own misdeed.”

[21]	The first respondent, instead of accepting the inevitable, that is, the loss of his property to a sale in execution, unlawfully sold the same property to the second respondent, received payment thereof and according to the latter, promptly used the proceeds to buy another property in the name of his wife and child. In these circumstances, allowing that sale to stand would be to reward the first respondent by allowing him to benefit from his illegal acts.

[22]	This is a person whose conduct MATHONSI J in his judgment aptly condemned as follows: -

“….Chiutsi has torn into smithereens every rule of ethics and professionalism  which those that occupy the privileged position of practising law pride themselves with. Not only has he conducted himself in a dishonourable and unworthy manner by misappropriating trust funds, he has not shown any contrition at all as he has stood neck to neck and eyeball to eyeball with a client from whom he snatched a large sum of money for a lengthy period of time as he employed every trick in the book to avoid paying what he unlawfully took from a client. He has been an unwelcome but very regular visitor to the precincts of this Court with countless but frivolous applications which he has disdainfully pursued with no other intention but to perpetuate an injustice.”

There remains, in light of these deserved excoriating comments regarding the conduct of the first respondent, no basis upon which such conduct can be redeemed, much less rewarded. Accordingly, the court a quo erred to the extent that through its judgment, it would have so rewarded the first respondent.

Ground of appeal number (6) has merit and is determined against the first respondent.

[23]	While in appropriate circumstances the innocent purchaser of property irregularly sold to him or her may still be able to legally keep title to such property, the appellant argues that such is not the case in relation to the second respondent in casu. The basis upon which it is contended that the sale of the property in question could not have been validly sold to the second respondent also relates to the bona fides or otherwise of the second respondent himself. The appellant contends in ground of appeal number 7 that the court a quo erred in coming to the conclusion that the second respondent was an innocent purchaser of the property in issue.

[24]	The appellant also argues, correctly in the court’s view, that transfer of the property to the second respondent was premised on fraud and perjury perpetrated by the first respondent. It further submits that the property was attached in execution and a caveat, which the second respondent was aware of but still went on to purchase such property, had been registered against the relevant Deed of Transfer. The appellant avers accordingly, that the second respondent was cognisant of the fact that the first respondent could not transfer valid or unblemished title to him. He thus, so the argument continues, could not allege any injustice being visited on him through cancellation of the Title Deed in his favour.

[25]	The appellant relied on the case of TBIC Investments v Kennedy Mangenje (supra)where the following was stated: -

“On the authorities, a buyer who acquires property 	from a seller who is not the owner and without valid mandate to sell the property, as happened in this case, acquires defective title which is a nullity at law. A nullity is an event that never happened in the eyes of the law.............In Guoxing Gong v Mayor Logistics (Pvt) Ltd SC 2/2017 at p 6, this Court made it abundantly clear that anything done contrary to the law is a nullity. To make matters worse, as correctly found by the learned Judge in the court a quo, the appellant obtained dubious title in circumstances where the original title deeds with the endorsement of State title had been fraudulently removed from the Deeds Registry. It is trite that one cannot transfer ownership of rights that he does not have nor can rights be lawfully transferred through fraudulent means. This is because the law prohibits anyone from deriving benefit from criminality regardless of the origin of the criminal conduct.”

[26] 	The evidence before the court shows that there is merit in the appellant’s submissions. The second respondent in his opposing affidavit a quo alluded to the fact that the Deed of Transfer in favour of the first respondent mysteriously went missing from the Deeds Registry, with no explanation being tendered as to how or why that had happened. He further stated that his father, who was standing in for him, was later informed by an official in the Deeds Registry that the deed had resurfaced and cryptically, that ‘any caveats on the property merely meant that the owners thereof were to be paid first from out of the proceeds of the sale.’  He submitted, accordingly, that he did not consider this circumstance to be a bar to the transfer of title to him. Later on in the same affidavit, the second respondent confirmed that ‘from the facts of this matter’, he had reported the first respondent to the police.

[27]	There is therefore substance in the assertion by the appellant that the second respondent was alive to irregularities surrounding the title that he sought to acquire from the first respondent. In particular, he was aware that a caveat or caveats had been endorsed on the title deed pertaining to the property in question. Contrary to what he was informed as being the effect thereof, a caveat endorsed on a title deed is in the form of a red light or a warning, to the Registrar of Deeds not to register transfer of the property before whatever bar to such disposal, is uplifted. It also signifies a warning to a prospective transferee that the transfer to him/her was dependent on the clearing of the hurdle represented by the caveat.

[28]	A prudent prospective transferee of the property should therefore, assure him or herself that any caveat registered against the transferor’s Title Deed is uplifted before pressing for change of title in their favour. The second respondent does not seem to have taken this caution to heart since in his affidavit, he did not state that the caveats mentioned had been uplifted, a circumstance that would have cleared the way for him to properly acquire title to the property. Instead, the second respondent seems to have contented himself with accepting the explanation from a Deeds Office official, that could not have been true at law. Based on that circumstance, he took the questionable attitude that the caveats were not a bar to the transfer of the property into his name.

[29]	That the second respondent seems to have managed to have title transferred into his name despite the existence of the caveats, in the court’s view, lends credence to the appellant’s assertion that this was likely achieved through collusion on the part of the first respondent (who perjured himself in the manner indicated above), and officials in the Deeds Office. A new transfer cannot properly be registered in the face of an extant caveat interdicting such transfer unless this is achieved through the type of questionable conduct alluded to by the appellant. It will be recalled that the Title Deed at the centre of this dispute went missing and later mysteriously resurfaced. Whatever could have been the real reason behind this disappearance is a matter of conjecture. It would however, not be far-fetched, given the many tricks employed by the first respondent to subvert the course of due processes and proceedings in this whole saga, to surmise that the disappearance and reappearance of the Deed in question was linked to the irregular transfer of title to the second respondent.

[30]	It is beyond doubt that the transfer of title in the property in issue otherwise than pursuant to a sale in execution, was crucial to the attainment of the objective that the first respondent so strenuously (and not always legally or ethically) fought to achieve. The second respondent, by forging ahead with efforts to secure title to the disputed property in the face of demonstrated irregularities, wittingly or otherwise helped to advance the first respondent’s nefarious ends.

[31]	The same conduct cast the second respondent’s alleged innocence and bona fides into serious doubt. One normally does not part with a huge amount of money unless they have fully assured themselves that they can safely and properly do so. Even if it could, for a moment, be assumed that the second respondent may not have colluded with the first respondent in subverting due process in the transfer of the property into his name, he, to his detriment, does not appear to have treated the matter with the caution and diligence that it deserved. As the well-trodden adage goes, ‘The law helps the diligent and not the laggard.’

[32]   The court a quo therefore erred in finding that the second respondent was an innocent purchaser who had no knowledge of any irregularities attaching to the purchase and registration of the property into his name. He, after all, at some point reported the first respondent to the police based on his appreciation of the irregularities in question.

Ground of appeal number (7) accordingly has merit and is determined against the second respondent.

[33]	The merit in the four grounds of appeal considered herein leaves no doubt in the mind of the court that the court a quo grossly erred in dismissing the appellant’s application for the cancellation of the Deed of Transfer number issued in the name of the second respondent. The appeal accordingly has merit and must be upheld.

As indicated above, this determination and the others in favour of the appellant render it unnecessary for the court to consider the remaining grounds of appeal.

[34]	The matter, however, does not end there. This is because of a worrying development in this dispute, that was brought to the court’s attention on the very day this appeal was heard. Counsel for the first respondent produced a judgement (HH 477/21) granted in default by CHITAPI J, the same judge whose judgment is the subject of this appeal. The judgment was handed down a day before the hearing of this appeal. Counsel for both the appellant and the fifth respondent expressed some disquiet at this turn of events and expressed the view, shared by the court, that the default judgment in question should not deter the hearing of the appeal before the court.

[35]	The dispositive part of the judgment in question purported to set aside the judgment of MATHONSI J, which endorsed the confirmation of the sale of the contested property by the Sheriff, to the appellant. In light of the pignus judiciale created by the attachment of the property in question, which attachment (and subsequent sale of the property) remained extant, the setting aside of MATHONSI J’s judgment per se would not, in any case, have validated the sale and transfer of the disputed property by the first respondent to the second respondent. The sale of the property by the sheriff remained confirmed, a situation that would not be changed by the order that this Court will grant in casu, of setting aside the sale and transfer of the same property to the second respondent.

[36]	However, given the first respondent’s propensity to institute all manner of litigation in an endeavour to subvert the process of execution against the property in question, it would not be unreasonable to assume that he would regard the default judgment as some sort of lifeline offered to him, to frustrate even further the final resolution of this matter. Because the default judgment in HH 477/21 by law, remains extant until lawfully set aside, one can easily foresee the first respondent, following the determination of this appeal, reverting to the High Court with a fresh application for the setting aside of the confirmation of the sale of the property by the Sheriff. While this outcome would be undesirable in itself, it however appeared to this court that the propriety of both the proceedings leading to the default order and of the order itself granted by the court was in some doubt.

[37]	Given that circumstance the court was of the opinion that a review of the default judgment in question, and the proceedings attendant thereon, was called for in terms of s 25 of the Supreme Court Act, which provides in relevant part as follows: -

(1)	Subject to this section, the Supreme Court and every judge of the Supreme Court shall have the same power, jurisdiction and authority as are vested in the High Court and judges of the High Court, respectively, to review the proceedings and decisions of inferior courts of justice, tribunals and administrative authorities.

(2) 	The power, jurisdiction and authority conferred by subsection (1) may 	be exercised whenever it comes to the notice of the Supreme Court or a 	judge of the Supreme Court that an irregularity has occurred in any 	proceedings or in the making of any decision notwithstanding that 	such proceedings are, or such decision is, not the subject of an 	appeal or application to the Supreme Court.

(3) 	 … (my emphasis)

[38]	The main application before CHITAPI J was one in which the second respondent sought the setting aside of MATHONSI J’s order which, among other things, upheld the confirmation by the Sheriff, of the sale of the disputed property to the appellant. What immediately struck the court as irregular was the fact that the default order in question granted the relief sought by the applicant (first respondent in casu) in the main application, when the matter before the court was meant to be an interlocutory application by the appellant and fifth respondent in casu, (as the respondents in the main application), for leave to appeal against the court’s dismissal of some points in limine raised by them therein.

[39]	Of further concern was the fact that the default judgment in question did not differentiate between two distinct and separate orders granted by MATHONSI J in the same judgment. This is because the matter before MATHONSI J was a consolidation of two applications, one by the first respondent (HC 11349/17) and the other by the fifth respondent in casu (HC2650/18). The latter application sought a declaratur to the effect that once the Sheriff has issued a determination in terms of r 359(1) of the High Court Rules, 1971, he was obliged to pass transfer in terms of r 361. The respondents in this matter were the first and fourth respondents herein. MATHONSI J specifically dismissed both applications. CHITAPI J’s default order in HH 477/21, by wholesomely and quite improperly setting aside the judgment of MATHONSI J, also set aside his order in the application filed by the fifth respondent. In the main application before CHITAPI J, the first respondent could not have sought the setting aside of an order that in its effect, was actually in his favour.

[40]	The first respondent in the main application alleged that MATHONSI J’s judgment was granted in error because he (first respondent) had since discovered that some false evidence concerning one of the parties had been put before the court, and considered by it. He therefore filed an application in terms of Rule 449 of the High Court Rules, for MATHONSI J’s judgment to be set aside on that basis. The appellant and fifth respondent in casu raised a number of points in limine which the court, however, dismissed. They sought and were provided with reasons for such dismissal and indicated their wish to note an appeal against it to the Supreme Court. Leave of the court being necessary, a timeline was agreed to by all the parties, for the filing of pleadings and the hearing of the application for leave to appeal. This included a date for the hearing, set for 20 July 2021.

[41]	The agreed timelines were encapsulated in an order of the court dated 6 July 2021, reading as follows;

IT IS ORDERED THAT;

(sic)Requested written judgment on dismissal of points in limine delivered in court. Parties may uplift the typed copies from the Registrar by 8 July 2021;

The 2nd and 3rd respondents (appellant and 5th respondent in casu) if as indicated by them that they wish to apply for leave to appeal shall if advised file the applications by 12 July 2021;

The applicant shall if advised to oppose the application, file his opposing papers by 14 July 2021;

The 2nd and 3rd respondents if advised to reply should file their answering papers by 16 July 2021;

The hearing of the application is set down for hearing on 20 July, 2021 at 10.00am

The wasted costs of 9 June 2021 are reserved for determination in the application for leave to appeal.

[42]	As this order makes it very clear, the hearing scheduled for 20 July 2021 related to the application by the appellant and fifth respondent in casu, for leave to appeal against the dismissal of the points in limine that they had raised in relation to the main application before CHITAPI J. It was on this date and for that hearing that all three counsel did not appear, raising the ire of the judge and prompting the issuance of the default judgment in question. Thus, the first respondent, who was a respondent in the application for leave to appeal, ended up with a judgment in his favour in the application he filed in terms of Rule 449, without the matter being heard and determined on the merits.

[43]	Other patent but minor irregularities ex facie and upon a cursory look at, the judgment in question, added to the concern felt by this Court with regard to the default judgment in question. Apart from citing the parties as cited in the main application, the following anomalous notation is evident on the first page of the judgment: -

Default judgment

T. Magwaliba, for the applicant

T Mapuranga, for the 2nd respondent

D Kwenda, for the 3rd respondent

The anomaly in question arises from the fact that all three-counsel cited were not present at the hearing of the application, a circumstance that the learned judge himself mentioned and roundly condemned in so far as it related to counsel for the second and third respondents in that matter. Counsel cited as representing the applicant therein, (first respondent in casu) Advocate T Magwaliba, was said in the judgment to have requested that the matter be stood down since he was appearing in the Supreme Court. The significance or effect of the erroneous citation of the three counsel who were absent from the court when the matter was called out, is however minor and may be attributed to simple oversight or lack of proof reading of the draft judgment by the judge.

[44]	What caused serious concern however, was the manner the proceedings before CHITAPI J were then conducted. Firstly, the judge noted in his judgment that Adv Magwaliba, counsel for the applicant (first respondent in casu) had requested that the matter be stood down because he was otherwise engaged with a case before the Supreme Court. This information was conveyed to the court by the first respondent. While noting this fact, the judge did not indicate what his reaction to the request was. Instead, he mentioned that following the established default of the other two counsel in the matter, the ‘applicant’ before him, that is, the first respondent in casu, applied for ‘judgment in default of the appearance of the second and third respondents’

[45]	It is not clear from the judgment how the first respondent, as the applicant, transitioned from being a represented litigant, to being an unrepresented one who was then granted audience to apply for a default judgment against the respondents, in the absence of his legal representative. There is no indication that his counsel of choice had renounced agency. Quite to the contrary since the latter had requested for the standing down of the matter until he was able to present himself. It is a matter of procedure that a legally represented litigant does not casually address and seek relief from the Court as a self-actor unless and until his or her legal practitioners have renounced agency.

[46]	Seemingly disregarding these considerations, the judge a quo proceeded to strongly berate counsel for the appellant and fifth respondent for so disrespecting the court as to be in default of appearance on a date that all parties had agreed to. Of the request from the first respondent’s counsel to stand the matter down, nothing was said. The judge instead saw nothing irregular in allowing a hitherto represented litigant to address the court as a self-actor and apply for default judgment against the appellant and the fifth respondent. The fact that the litigant in question was a senior legal practitioner who clearly sought to use his knowledge of court procedures to snatch at a judgment did not deter the court.

[47]	It is further not clear from the judgment whether or not the default judgment sought by the first respondent related to the main or the interlocutory application. In any case the first respondent, as a respondent in the interlocutory application could only have sought the dismissal or striking off, of that application. For their part, the two-counsel representing the appellant and fifth respondent in casu could only have been in default in relation to the interlocutory application for leave to appeal that, with their consent, had been set down for hearing on the day in question. However, the order that was then granted leaves no doubt that the court a quo took the legally incompetent view that the circumstances at hand called for a default order effectively striking down the respondents’ defence in the main application and granting the relief sought by the applicant therein.

[48]	It is astounding and in the court’s view, patently irregular that the judge a quo disregarded the reality of what was properly before the court on the date in question, (that is the application for leave to appeal), and proceeded to determine the substantive issue between the parties. The judge’s extreme disapproval of the perceived conduct of senior counsel representing the appellant and fifth respondent in casu for failing to appear on the date of hearing could not be an excuse for flouting the law both in substance and in terms of procedure. For quite clearly, the court a quo ruled on a matter that was not yet before it.

[49] 	Apart from citing, on the first page of the default judgment, the parties as they are cited in the main application, it is also evident that the court a quo conflated the two applications in other respects. The learned judge seems to have taken the view that the default by counsel concerned, in respect of the interlocutory application, also constituted default by them in relation to the main application. That this was the case is demonstrated by the court’s reference to the main application which in the judge’s words, was ‘vehemently opposed’ by the respondents therein. After correctly stating that what was to be determined in the main application was the veracity of the applicant’s averments as to whether MATHONSI J’s judgment was granted in error and whether there was merit in the application, the judge then stated as follows: -

“The application has however ended up determined on the basis of a default judgment … because of how the parties and particularly counsel for the second and 3rd respondents conducted themselves.”

The conduct of the second and third respondents referred to, was their failure to attend court for the hearing of the application for leave to appeal set down for 20 July 2021. It was not, as the judge suggests, for the hearing of the main application.

[50]	Another indication of the improper conflation of the two applications is the default order granted by the court, on the basis that the counsel concerned were ‘in wilful default’ and therefore, that the ‘default judgment was deserved’. The court reached backwards to the relief sought by the first respondent in the main application and granted it without amendment. The legal fate of the application for leave to appeal to the Supreme Court remains in limbo. The court was enjoined to, but did not, make a determination one way or the other in the face of the default by those who were domini litis in the interlocutory application before it.

[51]	One may note in this respect that even where all the parties to a matter properly set down, absent themselves from the hearing, the court would still be required to make an appropriate order. In the circumstances of this case, it is that type of order which would have defined the process to be followed in the eventual setting down of the main application, properly and on notice to all the concerned parties. Leaving undetermined, matters that are on the court roll would clearly not be in the interests of efficient case management, nor finality in litigation.

[52]	As it is the respondents in the main application, who presumably filed full pleadings in that respect and were looking to argue the matter on the merits whether or not their application for leave to appeal against some points in limine was granted, woke up to a situation where judgment had been granted against them in the substantive dispute between the parties. A compounding factor in the dubious procedure adopted by the judge a quo is the fact that the default order in question was granted on the basis of what could only have been a further futile attempt by the first respondent to frustrate execution against his property. It does not escape notice that the ‘mistake’ alleged related to the non-consideration by MATHONSI J of certain evidence that only came to light after the hearing of the matter to which the judgment related.

[53]	Literally with the stroke of a pen, the court a quo set aside the judgment of a judge of equal jurisdiction through the agency of a default judgement granted in a matter not before it. Equally damning is the fact that in setting aside MATHONSI J’s judgment, the court a quo did not differentiate between the order pertaining to the first respondent’s case, and that pertaining to the fifth respondent’s case. The latter order could only have been properly overturned at the instance of the losing party therein, that is, the fifth respondent.  The judge therefore granted a default order that had not been sought by anyone. In Nzara and Ors v Kashumba N.O & Ors SC 18/18 the court stated that a court may not grant an order not sought by the parties. The irregularity of such action needs no emphasis. It is worth mentioning in this respect that a judge is required to address his/her mind to every order that he or she makes, even in circumstances where such order is granted in default of appearance by a party to the proceedings. Absent that consideration, the propriety and soundness, at law, of such an order is not guaranteed.

[54]	The court finds in light of the foregoing that the processes leading to the default judgment granted by CHITAPI J, as well as the order itself, were irregular in the various respects outlined, and properly merited review by this Court in terms of s 25 of the Supreme Court Act.

Accordingly, both the proceedings in the matter and the resultant default order granted by the court in HH 477/21 stand to be vacated.

DISPOSITION

[55]	The first respondent fraudulently sold property that had already been sold to the appellant through a confirmed Sheriff’s sale by public auction. He proceeded to perjure himself and thereby facilitated transfer of the property into the second respondent’s name. The confirmation by the Sheriff of the sale by auction remains extant despite the incompetent default order granted in HH 477/21. The second respondent’s bona fides in acquiring title to the disputed property was effectively discredited. In all respects, the title deed number registered in the name of the second respondent, having been irregularly acquired, is null and void. The default judgment by CHITAPI J has failed to withstand review scrutiny as outlined and must be set aside. Consequently, MATHONSI J’s judgment in HH 604/18 remains extant.

It is in the result ordered as follows: -

The appeal is allowed with costs.

The judgment of the court a quo is set aside and is substituted with the following: -

The application is granted;

Deed of Transfer No. 708/19 issued by the third respondent in favour of the second respondent be and is hereby cancelled;

The Deeds under which the land in question or any real right therein was held prior to the registration of the cancelled Deed of Transfer be and are hereby revived;

Upon presentation of the relevant documentation by or on behalf of the applicant, the third respondent shall effect transfer of the property known as the Remainder of Subdivision C of Lot 6 of Lots 190, 191,192,193, 194, and 195 Highlands Estate of Welmoed measuring 4377 square metres, into the applicant’s name;

The first and second respondents jointly and severally, the one paying the other to be absolved, shall pay the costs

of this application.

In the exercise of this Court’s review powers in terms of s 25 of the Supreme Court Act (Cap 7.13), it is ordered as follows: -

“The proceedings and judgment of the court a quo in HH 477/21 handed down on 15 September 2021, be and are hereby set aside.”

GUVAVA JA	:	I agree

BHUNU JA	:	I agree

Gill Godlonton and Gerrans, appellant’s legal practitioners

The Temple Bar, 1st respondent’s legal practitioners

Samukange and Hungwe Attorneys, 2nd respondent’s legal practitioners

Tendai Biti Law, 5th respondent’s legal practitioners